WASHINGTON - The most recent filings in the mandatory bar dues case before the U.S. Supreme Court are mostly centered on Keller v. State Bar of California – a decades-old opinion that held the bar could fund political causes so long as those activities were germane.
On Nov. 24, a trio of attorneys filed a petition for writ of certiorari, asking the Supreme Court to hold that members of a mandatory bar cannot be compelled to finance any political or ideological activities with their dues.
The challenge was brought by attorneys Tony McDonald, Joshua Hammer and Mark Pulliam, who sued the Board of Directors for the State Bar of Texas alleging First Amendment rights violations under Janus v. AFSCME – a 2018 Supreme Court decision that found that millions of public servants no longer have to pay a government union as a condition of employment.
Court records show that on Feb. 7 the Bar’s Board filed a brief in opposition in the Supreme Court case, asserting that the petitioners’ “primary argument” is both splitless and meritless.
The Bar argues that the Keller standard remains workable and that overruling the decision “would frustrate the substantial reliance interests of the numerous states with integrated bars, severely disrupting how the legal systems in those states operate and – at least in Texas’s case – likely requiring extensive legislative intervention.”
Both sides believe the case’s outcome could have a far-reaching impact.
On Feb. 22, the petitioners filed a reply brief, which states that the case has “profound implications for the hundreds of thousands of attorneys who are compelled to join and fund mandatory bar associations as a condition of practicing their profession.”
“Notwithstanding Janus, hundreds of thousands of attorneys across the country continue to be coerced into subsidizing the highly ideological and polarizing activities of ‘mandatory’ or ‘integrated’ bar associations. This Court’s intervention is needed,” the brief states. “It should grant certiorari either to clarify the First Amendment limits on this coercion under existing precedent or to reconsider from first principles whether compelling attorneys to join and fund a mandatory bar association violates their freedom of speech or association.”
In a separate but relevant action, the Bar’s Board is arguing the First Amendment’s free speech clause doesn’t apply to its activities.
On Dec. 30, the Board filed a conditional cross-petition for a writ of certiorari with the Supreme Court, questioning whether the Texas Bar, which is “a public corporation and an administrative agency of the judicial department of [the Texas] government,” qualifies as a government agency for purposes of the government speech doctrine, such that its speech is “not subject to scrutiny under the [First Amendment’s] Free Speech Clause.”
“This Court’s subsequent case law demonstrates that the State Bar of Texas’s speech is government speech, so ‘the Free Speech Clause has no application’ to the Bar’s expressive activities— wholly undermining the basis for the plaintiffs’ First Amendment claims,” the Board’s petition states.
Court records show the trio of attorneys filed a brief in opposition on Feb. 28, arguing that the “Bar’s vast array of politically and ideologically charged activities are not government speech and should remain fully subject to the First Amendment’s protections against coerced speech and association.”
“In Keller v. State Bar of California, this Court unanimously held that a mandatory state bar’s activities and advocacy are not government speech but are instead subject to the First Amendment’s protections against coerced speech and expression,” the brief states. “The Texas State Bar has filed a conditional cross-petition for a writ of certiorari asking this Court to revisit that aspect of Keller and hold that the First Amendment has no application whatsoever in this context.
“The fact that even the Bar believes certain aspects of Keller are wrong should undermine its arguments in the principal case that Keller’s other holdings should be retained under stare decisis principles.”
Case Background
The legal battle over mandatory bar dues in Texas has been waged for the past three years.
In the lawsuit, a federal judge granted the Board summary judgment and the case ended up before the U.S. Fifth Circuit Court of Appeals.
“In sum, the Bar is engaged in non-germane activities, so compelling the plaintiffs to join it violates their First Amendment rights,” the Fifth Circuit’s opinion states.
The attorneys’ petition for writ of certiorari states that the Fifth Circuit correctly held that they could not be compelled to support the Bar’s political advocacy in matters unrelated to the legal profession, but found itself constrained by Keller to reject their First Amendment challenges to all of the other activities at issue because they were germane.
“This Court should grant certiorari and hold that members of a mandatory bar cannot be compelled to finance any political or ideological activities, and cannot be compelled to join a bar that engages in such activities,” the petition states. “Although Keller did contemplate a limited role for a mandatory bar whose activities are carefully circumscribed, nothing in Keller gives bar associations a blank check to use coerced dues to support highly controversial and ideologically charged activities such as those challenged here.”
In its petition, the Bar states that this case provides a suitable vehicle for reconsidering Keller’s refusal to apply the government speech doctrine to integrated bars.